"Democracy is the art of running the circus from the monkey cage." ~Mencken

April 29, 2008

David Souter: Jurist, Man of Letters

Leave it to Justice David H. Souter to inject a little literary panache into a dissent. In the U.S. Supreme Court opinion yesterday in Crawford V. Marion County Election Board, the jurist from New Hampshire reeled in a classic poem, "Antigonish," to make a point in his 30-page dissent. Disagreeing with the court majority, he concluded an Indiana law requiring voters to provide photo ID was unconstitutional. The law, he wrote, "threatens to impose nontrivial burdens on the voting right of tens of thousands of the state’s citizens, and a significant percentage of those individuals are likely to be deterred from voting."

The man from Weare then provided a culture flash.

He wrote, with Justice Ginsburg joining the dissent, "The State responds to the want of evidence with the assertion that in-person voter impersonation fraud is hard to detect. But this is like saying the ‘man who wasn’t there’ is hard to spot, and to know whether difficulty in detection accounts for the lack of evidence one at least has to ask whether in-person voter impersonation is (or would be) relatively harder to ferret out than other kinds of fraud (e.g., by absentee ballot) which the State has had no trouble documenting. The answer seems to be no; there is reason to think that ‘impersonation of voters is ... the most likely type of fraud to be discovered.'"

The "man who wasn't there" footnote references an 1899 poem, "Antigonish," by American educator and poet William Hughes Mearns. The old Harvard man (1875-1965) wrote,

As I was going up the stair

I saw a man who wasn’t there

He wasn’t there again today

I wish, I wish, he’d stay away.

The poem, said to be inspired by a haunted house in Nova Scotia, has numerous versions and spoofs. The Souter dissent references the version collected by editor Martin Gardner in "Best Remembered Poems," 1992. The poem, sometimes called "The Little Man Who Wasn’t There," has another popular version: